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IMPORTANT JUDGEMENT ABOUT GARDIANSHIP OF CHILD Judgement - 17-Mar-2021
IMPORTANT JUDGEMENT ABOUT GARDIANSHIP OF CHILD Judgement - 17-Mar-2021
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFERRED CASE (CIVIL) NO. 25 OF 2021
Versus
J U D G M E N T
A.M. Khanwilkar, J.
1. The appellant1 had filed MAT Appeal (F.C.) No. 85/2020 in
pending between the parties in this Court involving overlapping
appeal, filed by the appellant is against the judgment and orders
Digitally signed by
DEEPAK SINGH
Date: 2021.03.17
14:14:30 IST
Reason:
respondent4 for transposing her as petitioner in the petition filed
Raina and appointing him as her guardian, came to be allowed
on the finding that the appellant had abandoned the petition. On
the same day, by a separate order, the respondent was appointed
as sole, exclusive and absolute guardian and custodian of minor
child.
petition filed by the appellant, the respondent had filed habeas
corpus petition on two occasions and because of noncompliance
visitation rights, both had to file contempt petition against each
other. The appellant, as well as, his parents have also filed
special leave petition(s) against the judgment of the High Court in
habeas corpus petition(s) and contempt petition(s).
petition is also pending between the parties.
4. Be that as it may, when the cases between the parties in
addressed the Court on all aspects of that matter. Intriguingly,
despite this Court vide order dated 29.7.2020 had withdrawn the
stated first appeal pending before the High Court and transferred
it to this Court, the High Court on 6.8.2020 in the very appeal,
this Court, proceeded to dispose of the appeal alongwith pending
applications therein. That, obviously, could not have been done
by the High Court. For, it had ceased to have jurisdiction to deal
with the appeal any further after the order of this Court dated
transferred case (appeal) on merits without reference to the order
of the High Court, dated 6.8.2020.
3
5. As aforesaid, there are multiple proceedings pending
between the parties. But, in this judgment, we may confine to
regarding guardianship.
6. At the outset, we may note that for the nature of order that
we propose to pass in the present transferred case, it may not be
necessary for us to advert to all the factual matters pointed out
by both sides. Suffice it to note that the guardianship petition
(G.P. No. 09/2018) was filed by the appellant under Section 7 of
the Guardians and Wards Act, 18905 read with Section 7(g) of the
Family Courts Act, 19846 on 9.2.2018 on the assertion that the
appellant had prayed for following reliefs:
“A. To declare petitioner as guardian of person of baby
Raina.
B. Appointing the petitioner as guardian of person of
baby Raina.
C. Any other relief this Hon’ble Court may deem fit and
proper.”
the petition under Order VI Rule 17 read with Section 151 of the
Code of Civil Procedure, 19087 and Section 10 of the 1984 Act to
appellant on 21.8.2018. There is nothing on record to indicate
that the Family Court dealt with and disposed of this application
before the impugned order came to be passed on 21.9.2019. The
appellant filed another application under Order VI Rule 17 read
with Section 151 of the CPC and Section 10 of the 1984 Act for
directed the respondent to file reply to this application. However,
the respondent did not file reply even to this application. In view
record copy of order dated 13.2.2019 passed by the High Court in
respondent and for issuing further directions that because of the
heard on any application until she purges contempt. The Family
order dated 20.2.2019 that the application filed by the appellant
under Order VI Rule 17 was still pending and notified the same
for hearing on 8.3.2019. When the matter was listed before the
intimation, started arguing application under Section 26 of the
Hindu Marriage Act, 19558 filed by her, despite the fact that the
said application was not listed for argument on that date. What
order dated 13.2.2019 in CCP No. 116/2019 and the fourth one
filed by the respondent under Order VII Rule 11 for dismissal of
the guardianship petition (G.P. No. 09/2018). However, all the
four applications stood deferred on that day.
7. The respondent then filed an application under Section 151
of the CPC for declaring and appointing her to be the sole and
application was filed by the respondent on 13.9.2019. No notice
was given to the appellant of this application nor advance copy
been averred in that application, that from the proceedings before
the High Court appended to the application it was amply clear
that the appellant had proved himself to be unworthy, incapable
and incompetent to act in the welfare of child and discharge any
parenting privilege whatsoever. In the wake of serious allegations
against the appellant, this application was ordered to be posted
for hearing before the Family Court on 16.9.2019 at 2.00 p.m., as
noted in the order dated 13.9.2019, which reads thus:
“GP No. 09/2018
Aman Lohia vs. Kiran Lohia
13.09.2019
Present: Ms. Rytim Vohra, Ld. Counsel for the
respondent/ applicant.
File taken up today on application under Section 151
CPC seeking appropriate directions filed on behalf of the
respondent/applicant.
Let notice of the application be issued to the
petitioner/nonapplicant and his counsel on filing of
PF as well as through Email as per law. Process be
given dasti.
Be listed on 16.09.2019 at 2.00 pm.
Ld. Counsel for the petitioner has filed on record
photocopy of the order of the Hon’ble High Court of Delhi
dated 12.09.2019 vide which the application for transfer
of the case from this court to some other court has been
dismissed. Since now there is no bar or restraint for this
court to proceed with the case notice has been issued to
the nonapplicant/petitioner.”
(emphasis supplied)
7
In terms of the said order, the matter was notified on 16.9.2019
when following order came to be passed:
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
16.9.2019
Present: Sh. Rajat Bhalla, Ld. Counsel for the petitioner.
Ld. Proxy Counsel for the respondent.
File taken up today as Sh. Rajat Bhalla, Ld. Counsel
for the petitioner has been served with notice of the
applications moved by ld. Counsel for the respondent for
early hearing and issuance of directions.
Sh. Rajat Bhalla, Advocate who was appearing on
behalf of the petitioner in the present petition and in HMA
Bearing No. 625/18 (new No. 663/18) states that since he
has not received any instructions from his client,
therefore, he seeks discharge from this case. He has also
pointed out that he has made similar request before the
Hon’ble High Court of Delhi in same cases pending
between the same parties and he was discharged in the
same vide order dated 12.9.2019. He also states that he
had written email to his client and had tried other modes
of service also to inform him that he should make
alternative arrangements for a counsel as he is seeking
discharge in this case. He states that he had sent emails
to the counsel for the respondent that he was no more
representing the petitioner Sh. Aman Lohia in any of the
matters handled by him.
Heard.
After hearing counsel for the petitioner and having
gone through the emails that he has sent to the
petitioner and the copies of the orders of the Hon’ble
High Court of Delhi, he is discharged from this case.
No one is present thus today on behalf of the
petitioner. Notice was sent to him dasti and report on
the same is awaited.
Be listed on 19.9.2019 at 2.30 pm.
Earlier date given i.e. 30.10.2019 stands
cancelled.”
(emphasis supplied)
8
In the meantime, the respondent filed another application under
Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of
the CPC to transpose her as the petitioner in the guardianship
18.9.2019. The reliefs claimed therein read thus:
“PRAYER
In the above stated facts and circumstances, it is
respectfully prayed that this Hon’ble Court may be
pleased to:
a. Transpose the Respondent as the Petitioner
and the Petitioner as a Respondent in the present
case.
b. Pass such other orders or directions as it may
deem fit and proper in the interest of justice.”
Court, when the Court passed the following order:
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
19.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.
Ld. Counsel for the respondent has filed an
application under Order 1 Rule 10 and Order 23 Rule
1 a r/w Section 151 CPC to transpose the respondent.
Be listed for consideration on 20.09.2019 at
1.00 pm.”
(emphasis supplied)
recorded the following order:
9
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
20.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.
Arguments have been heard from 2:15 to 5:00
pm on applications, one application under Order 1
Rule 10 and Order 23 Rule 1a r/w Section 151 CPC
and other application under Section 151 CPC have
been filed by the Ld. Counsel.
Ld. Counsel for the respondent seeks time to file
case law.
Be listed for orders on 21.09.2019.
Sd/
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”
Once again, the Court did not advert to the crucial aspects as to
application under Section 151 of the CPC filed by the respondent,
as also, the subsequent application for transposition under Order
I Rule 10.
hearing before the Family Court when two separate orders came
to be passed. The first order was that despite knowledge about
10
withdrawn from the case for which reason the respondent was
petition and seek declaration that she was the guardian of the
notice regarding hearing of the said application before the Court,
despite the fact that his counsel had been discharged from the
case and the appellant was not represented by any other counsel.
On the same day, the Family Court then proceeded to decide the
main guardianship petition (G.P. No. 09/2018). After recording
the material facts pointed out by the respondent, it proceeded to
hold that giving guardianship of the minor child, who was only
two and half years of age, to the appellant, was not advisable. By
virtue of his conduct, he (appellant) had disentitled himself to be
interest and welfare of the child, the respondent mother needs to
custodian of the minor child.
11
10. Feeling aggrieved, the appellant approached the High Court
aforesaid judgment and orders passed by the Family Court, dated
Court including the manner in which the impugned orders were
were passed by the Family Court without following due process of
law and in breach of principles of natural justice, in the matters
appellant even thereafter, calling upon him to make alternative
respondent as petitioner and appellant as respondent and on the
same day to declare her (respondent) as the sole, exclusive and
absolute guardian and custodian of the minor child.
not a judgment in terms of Section 17 of the 1984 Act. That the
12
record of the case makes it amply clear that the Family Court
failed to adhere to the established practice and procedure to be
followed for adjudicating the disputes brought before it under the
1984 Act. That is evident from the order dated 13.9.2019, which
16.9.2019, when the counsel appearing for the appellant – Mr.
discharge and his application came to be allowed by the Court,
no notice thereof was given to the appellant. The order clearly
records that dasti report regarding service of notice sent to the
appellant was still awaited. As a matter of fact, on an earlier
date, the Court had posted the matter for 30.10.2019, which date
stood unilaterally cancelled by the Family Court in terms of order
dated 16.9.2019, again without notice to the appellant. Further,
no affidavit of service was filed on record indicating the factum of
service of notice on the appellant regarding the application under
Section 151 of the CPC filed by the respondent praying that she
custodian of the minor child. Despite that, the Court proceeded
13
with the matter on 19.9.2019, but before that date, another
her as petitioner in the guardianship petition and appellant as
respondent therein, for the reasons mentioned in the application
dated 18.9.2019. Even copy of this application was not served on
therewith on 19.9.2019 without recording the fact as to whether
the appellant was duly served with the earlier application or the
earlier notice; and yet chose to list the matter on the next day
i.e., 20.9.2019 for consideration at 1.00 p.m. In short, it is urged
that the record plainly speaks about the manner in which the
tearing hurry at the behest of the respondent whilst completely
disregarding the mandatory procedure prescribed in the 1984 Act
infraction of principles of natural justice. It is urged that it was
not open to the Family Court to assume the factum of appellant
the appellant was not pursuing the proceedings diligently or was
have dismissed the petition filed by the appellant on the ground
of default or nonprosecution under Order IX Rule 8 of the CPC.
transposition application ex parte against the appellant, it should
filed by the appellant and appellant as respondent therein, it was
imperative for the Court to issue notice to the appellant to file his
response in the proceedings. As a matter of fact, in guardianship
proceedings, the question of transposition does not arise. For, it
is a substantive petition founded on cause of action personal to
the person claiming to be guardian of his own ward. Moreover,
admittedly, the respondent had never filed written statement to
oppose the guardianship petition filed by the appellant much less
reply to the application(s) for amendment of petition, which could
notice to the appellant and only after service of notice, could have
proceeded in the matter. If the respondent had any difficulty in
effecting service of notice on the appellant, the Court could have
substituted service under Order V of the CPC. Even that attempt
manifestly wrong. Hence, the procedure followed by the Family
Court until culmination of proceedings into judgment and orders
dated 21.9.2019, is vitiated in law.
Sahoo vs. Abinash Sahoo9, wherein the Orissa High Court took
Court. According to the appellant, the decision relied upon by
the Family Court of Delhi High Court in Someshwar Dayal vs.
distinguishable, as there was nothing on record to indicate that
the petitioner had expressly abandoned the proceedings or after
9 2015 SCC Online Ori 167
10 2016 SCC Online Del 4585
16
due opportunity, had committed default in any manner. The
appellant having withdrawn from the case. That does not mean
that the appellant had abandoned the proceedings. It is urged
that the application filed by the respondent under Section 151 of
the CPC, in law, could not be regarded as a substantive petition
declaration/appointment as guardian. In any case, the Family
Court was under obligation to insist for the written statement to
be filed by the respondent including reply to the applications filed
by the appellant under Order VI Rule 17 of the CPC and then to
frame issues on which the matter could proceed. Not only that,
adjudicating the matters in issue and pronounce final declaration
and judgment under Section 17 of the 1984 Act, which obliges
the Family Court to record a concise statement of the case, the
point for determination, the decision thereon and the reasons for
plenary power of a constitutional Court, but is obliged to decide
pronouncing the impugned judgment and orders on 21.9.2019,
upon an application filed by the respondent under Section 151 of
the CPC, despite becoming functus officio, issued directions vide
order dated 16.10.2019 to the effect that the custody of the minor
child be handed over to the respondent mother within specified
time. It was matter of record that the child was away from the
jurisdiction of the Family Court when the relevant orders came to
be passed. In law, therefore, the Family Court could not have
Majoo11.
13. The appellant asserts that he is a loving, caring, concerned
and affectionate father and the minor cannot be denied of all that
merely because of events that unfolded during the pendency of
habeas corpus petition(s) or contempt petition(s) before the High
paramount welfare and interest of the minor child. The approach
of the Court in that regard ought to be childcentric. The issue
father because of other acts of commission and omission of the
father. To do so would, in effect, be punishing the minor child
and depriving her of the love and affection of her father. That
obliged to record a clear finding about the unfitness or otherwise
of the father to be a guardian. That must be in the context of the
child care and not other matters or worldly activities of father.
appropriate course would be to follow the joint shared parenting
plan, in which the child would interact with both the parents in
equal measure. Further, the paramount interest and welfare of
mother, but even other family members from both sides for her
counselling, the respondent had accepted the fact that because
several aspects about the unfitness of the respondent to groom
the child or devote enough time and attention herself.
Seetharam vs. Rajiv Vijayasarathy Rathnam12, JK vs. NS13,
Custody Guidelines alongwith Parenting Plan16. According to
the appellant, joint custody or shared parenting would be in the
“best interest and welfare of the child”. That would ensure that
every decision taken regarding the child is for fulfilment of her
basic rights and needs, identity, social wellbeing and physical,
Ranjan vs. Anupma Tandon & Anr.18, Tejaswini Gaud & Ors.
Singh vs. Romani Singh20.
15. It is urged that the respondent for reasons best known to
given by this Court in connected proceedings between the parties,
by taking U.S. nationality of the minor child and also obtained a
2019 from the U.S. Embassy. The respondent herself is a U.S.
citizen. Therefore, the appellant apprehends that the respondent
has intention to remove the child away from the jurisdiction of
the Courts in India and permanently deny access to him and his
family members. Since the respondent has secured CRBA status
impugned judgment and orders, upon setting aside of that order,
of law.
16. As a matter of fact, in the Indian context, neither provisions
of the 1984 Act nor the 1890 Act, envisage a declaration in favour
19 (2019) 7 SCC 42
20 (2017) 3 SCC 231
21
of the parent to be the sole, exclusive and absolute guardian and
intentionally obtained by the respondent from the Family Court
guardianship of the minor child. The appellant has also relied on
the observations in Nithya Anand Raghavan vs. State (NCT of
Delhi) & Anr.21, Prateek Gupta vs. Shilpi Gupta & Ors. 22,
(NCT of Delhi)24. According to the appellant, the father being a
declaration of guardianship unless it is found in a given case that
he is unfit in the context of parenting of the minor child or would
act against the interest and welfare of the minor child, as the
case may be. According to the appellant, the father is a natural
guardian. Irrespective of the mother’s custody, the guardianship
Sharma25. It is contended that unless the father is declared as
unfit, the relief of declaring him to be the guardian cannot be
declined. The fact that the appellant had taken the child away
from the jurisdiction of the Family Court, does not mean that he
guardian.
consideration of the Government of India and interparental child
abduction has not yet found any recognition in Indian law.
orders cannot be sustained on any parameter and need to be set
aside and instead, the guardianship petition (G.P. No. 09/2018)
filed by the appellant be made absolute in favour of the appellant.
appellant. It is urged that the Family Court had no other option,
but to proceed on the basis that the appellant had abandoned the
proceedings before the Family Court, does not mean that he had
not abandoned the proceedings before the Family Court by his
and so noted even by the High Court. The appellant admittedly
converted to Islam. It is only when it became impossible for him
proceedings and submit to the jurisdiction of this Court. Such a
litigant cannot be shown any indulgence nor would deserve any
sympathy. The appellant is required to discharge high burden of
making process by the Family Court. In any case, the facts and
the record would reveal that the appellant had full notice about
respondent, as is evident from his email trail. It is urged that the
24
appellant because of his conduct, has denied himself of raising
technical pleas about procedural lapses committed by the Family
substantive justice. It is urged that hyper technical argument of
Family Court, needs to be negatived in light of the exposition in
State of Punjab & Anr. vs. Shamlal Murari & Anr.28 and
Rosy Jacob vs. Jacob A. Chakramakkal29.
reasons why the order passed by the Family Court needs to be
upheld. For, the appellant not only converted himself to Islam
but also indulged in misadventure by abducting minor child and
taking her away outside India and obtained Dominica citizenship
and Dominica passport for the minor. The mother being the
rendered himself to be unfit as guardian, the Family Court justly
recognised the respondent as the sole guardian of the minor.
counsel submits that she would surrender the same. That was
taken by the respondent in good faith and for the welfare of the
concluding that giving guardianship to the appellant father would
not be advisable and instead, the respondent was the fit person
discussion in paragraphs 15, 17 to 28 of the impugned judgment.
company of the appellant or his family members, whereas, she is
being a professional, she is conscious of her obligation towards
the minor child and gives her best for the welfare and upbringing
of her daughter. The present arrangement of visitation permitted
continue on same terms without disturbing the decision of the
Family Court declaring the respondent as the sole guardian of
26
the minor. The respondent is willing to abide by any terms and
converted himself to Islam for reasons best known to him, has
continues to remain Hindu.
22. Reliance is placed on Section 6 of the Hindu Minority and
Guardianship Act, 195630. As per the proviso therein, no person
is entitled to act as the natural guardian of a minor under the
provisions of Section 6, if he has ceased to be a Hindu. There
being a clear embargo by statute coupled with the welfare of the
him. The appellant had indulged in abduction of the minor child
members. That itself is a good reason to deny any relief to the
purges contempt and those proceedings are still pending before
especially because the appellant has acted against the welfare of
the minor. Any other view would result in rewarding him for his
misconduct and misadventure including the disobedience of the
directions issued by the High Court, by abducting the minor on
two occasions, the first one when she was seven months old and
the second when she was only two years old. The minor must
have undergone traumatic experience because of such abduction
and taking her away to foreign country completely blocking out
from her mother (respondent). This is not a case of overzealous
emotional father, who loves his child, but is a revengeful father
who hates his wife (mother of minor child), much more than his
proclaimed love for his child. The appellant is unfit as a model
parent and does not have moral values of an upstanding citizen
who respects the law and cares about the people around him.
appellant, wherein he had gone to the extent of showing distrust
in the judicial system of this country and had converted himself
to Islam only to ensure that the custody of the child remains with
31 (2009) 1 SCC 42
28
him. He did not stop at that, but also fraudulently obtained
passport for the minor child from the Dominica when her Indian
passport was in custody of the High Court. He devised a legal
stratagem of using Indian legal system, as well as, the Courts in
UAE for achieving his immoral plan of retaining custody of the
minor child with him and to completely deny the respondent of
any access or interaction whatsoever with the minor child. The
entitled for any relief whatsoever. It is urged that by now, it is
codified in the form of Section 6(a) of the 1956 Act, which gives
support of this proposition. According to the respondent, there is
an ongoing risk of third kidnapping or attempt in that behalf by
the appellant. The appellant is a flight risk and cannot be pinned
down in the event he manages to escape with the minor child. To
safeguard the interest of the minor child in appropriate way and
respondent and her family members as well, it will be just and
29
proper to uphold the decision of the Family Court. Further, there
would be a futile exercise because the conduct of the appellant all
throughout has disentitled him for being declared as a fit person
for being the guardian of minor child.
24. Our attention was drawn to various documents to support
immense tension and stress to the minor child of such a tender
age, because of her abduction on two occasions. According to the
impugned judgment and orders passed by the Family Court does
not merit any interference and the same be dismissed.
25. We have heard Mr. Anil Malhotra, learned counsel for the
appellant and Mr. Shyam Divan, learned senior counsel for the
respondent.
30
26. After cogitating over the rival submissions, in our
considered opinion, it may not be appropriate for us to delve into
the factual matrix of the case, especially regarding the conduct of
the parties as alleged by them against each other, for the nature
of order that we propose to pass.
27. We are more than convinced that the Family Court, in the
proceedings. Indubitably, the Family Court is obliged to inquire
into the matter as per the procedure prescribed by law. It does
procedural requirements in particular, which guarantee fairness
adjudication of claims of both sides. The nature of inquiry before
the Family Court is, indeed, adjudicatory. It is obliged to resolve
the rival claims of the parties and while doing so, it must adhere
to the norms prescribed by the statue in that regard and also the
justice.
28. The Family Courts came to be established under the 1984
Act. Section 7 specifies the jurisdiction of the Family Court and
31
about the nature of claims to be adjudicated by it in the form of
section (1). Section 10 predicates about the procedure generally.
The provisions of the CPC are made applicable for resolution of
disputes falling under the 1984 Act. The Family Court is deemed
to be a Civil Court having all powers of such Court. Consequent
to bestowing such power on the Family Court, comes with it a
primary duty to make efforts for settlement, as prescribed under
disputes between the parties, the Family Court then has to bear
1872, which had been made applicable in terms of Section 14 of
the 1984 Act. A Family Court can receive as evidence any report,
opinion, assist it to deal effectually with a dispute, whether or not
gives insight into the working of the Family Court in the form of
Section 15. It posits that the Family Court shall not be obliged to
record the evidence of witnesses at length, but the Judge, as the
examination of each witness proceeds, shall, record or cause to
32
be recorded, a memorandum of the substance of what the
witness deposes, and such memorandum shall be signed by the
witness and the Judge and shall form part of the record. An
can be traced to Section 16 of the 1984 Act. That envisages that
character, may be given by affidavit and may, subject to all just
exceptions, be read in evidence in any suit or proceeding before a
Family Court.
expected to follow procedure known to law, which means insist
for a formal pleading to be filed by both sides, then frame issues
recording reasons for such decision. For doing this, the Family
claim in the form of pleadings and evidence before determination
of the dispute.
33
30. We may usefully refer to the provisions of the 1890 Act, as
Court. The appellant admittedly filed petition before the Family
Court under Section 7 of the 1890 Act read with Section 7(g) of
the 1984 Act. Section 7 of the 1890 Act bestows power in the
Court to make order as to guardianship in respect of a minor.
Such prayer can be made by anyone interested in the welfare of
the minor and “not limited to the father and mother of the
minor”. In this inquiry, the Court, if so satisfied that it is for the
declaring a person to be such a guardian. Section 8 of the Act
makes it amply clear as to who is entitled to apply for the order.
desirous of being the guardian of the minor. The second is any
relative or friend of the minor. The third is the Collector of the
application is required to be filed before the District Court having
jurisdiction in the place where the minor ordinarily resides under
34
Section 9 of the 1890 Act. As regards procedure for such an
necessary information referred to therein. Section 11 prescribes
for the procedure in the event the Court is satisfied that there is
adducing of evidence before making an order in terms of Section
making order, must also bear in mind the exception provided in
Section 19 as to who should not be appointed as guardian.
31. Suffice it to observe that both the enactments (the 1984 Act
proceeds for recording of evidence followed by the declaration or
guarantee fair opportunity to all concerned.
32. The question, therefore, that needs to be answered in light
35
Court in the present case had followed procedure prescribed by
principles of natural justice?
33. It is not in dispute that the appellant had filed the petition
Section 7(g) of the 1984 Act. Admittedly, no written statement
was ever filed by the respondent to oppose the said petition. On
the other hand, the appellant took out two applications for
amendment of the pleadings under Order VI Rule 17 of the CPC.
No reply was filed by the respondent even to these applications,
despite Court directing her to do so vide order dated 4.10.2018.
decided these two applications for amendment of pleadings taken
out by the appellant. Although the main objection alongwith two
response to the main petition or the amendment applications and
instead took out application under Section 151 of the CPC for
being appointed the sole and absolute guardian and custodian of
the minor child, on 13.9.2019. This application was posted for
hearing on 13.9.2019, on which date the Court issued notice to
36
the appellant and his counsel. As per that order, the matter was
again notified on 16.9.2019 when the counsel appearing for the
appellant – Mr. Rajat Bhalla requested the Court to
discharge him from the case, which request was acceded to by
the Court. As a matter of fact, before discharging the counsel,
the Family Court should have ensured that notice was given to
the appellant about the request made by his counsel including to
make alternative arrangements, if he so desired. Admittedly, no
such notice was issued by the Family Court. That is reinforced
above. It has been plainly noted that dasti notice sent to the
appellant was still awaited.
34. Assuming that the Family Court could have allowed the
discharge without giving notice to the appellant. However, after
appellant to inform about the order so passed and also calling
upon the appellant to make necessary arrangements on the next
19.9.2019 at 2.30 p.m. In terms of order dated 16.9.2019, the
record to show that the respondent had made such a request.
respondent took out another application under Order I Rule 10
read with Order XXIII Rule 1A of the CPC for being transposed as
petitioner in the guardianship petition and to transpose appellant
as respondent therein, for the reasons stated in the application
dated 18.9.2019. Admittedly, even copy of this application was
not served on the appellant nor a formal notice came to be issued
by the Family Court on this application, when it was taken up for
hearing on 19.9.2019. The Family Court merely ordered to place
the matter on 20.9.2019 at 1.00 p.m. The order dated 19.9.2019
16.9.2019 had been duly served nor about the filing of any
affidavit of service effected on him. Be that as it may, when the
(also reproduced in paragraph 8 above):
“GP No. 09/2018
Aman Lohia vs. Kiran Kaur Lohia
38
20.09.2019
Present: None for petitioner.
Respondent in person with Ld. Counsel Ms.
Malvika Rajkotia.
Arguments have been heard from 2:15 to 5:00
pm on applications, one application under Order 1
Rule 10 and Order 23 Rule 1a r/w Section 151 CPC
and other application under Section 151 CPC have
been filed by the Ld. Counsel.
Ld. Counsel for the respondent seeks time to file
case law.
Be listed for orders on 21.09.2019.
Sd/
Swarna Kanta Sharma
Principal Judge, Family Court
Patiala House Court, New Delhi
20.09.2019 (R)”
Once again, there is no mention even in this order about service
of (i) the application under Section 151 of the CPC filed by the
respondent, (ii) the application under Order I Rule 10 of the CPC
read with Order XXIII Rule 1 read with Section 151 of the CPC
filed by the respondent, (iii) order dated 16.9.2019 and (iv) order
appellant. Despite this, the Court proceeded on the assumption
that the appellant had abandoned the proceedings. There can be
proceedings. The abandonment has to be express or even if it is
convincing that drawing such inference is inevitable. Rather, no
39
other view is possible. For that, the Court ought to have adverted
to the material/evidence indicating that the appellant/petitioner
was duly served with the applications filed by the respondent and
Court notices. Even if the Court was to infer abandonment, it
could at best have dismissed the petition for default in exercise of
power under Order IX Rule 8 of the CPC.
Admittedly, there is no official Court record to indicate that such
petition including parties producing evidence in support of their
40
determination. After such amendment, in any case, opportunity
was required to be given to the appellant by issuing Court notice
so as to enable him to respond to the amended petition including
to contest the same. We may not be understood to have accepted
the proposition that transposition in guardianship proceeding is
permissible, much less permissible as a matter of course at the
instance of the other parent of the minor child. We leave that
question open.
punishment and penalties; not a thing designed to trip people up.
Further, too technical a construction of sections that leaves no
room for reasonable elasticity of interpretation should therefore
be guarded against (provided always that justice is done to both
sides) lest the very means designed for the furtherance of justice
be used to frustrate it. These observations are contextual and
have no application to the case where there is no semblance of
procedure followed by the Family Court and the entire matter is
disposed of in a short span of less than eight days after filing of
an application (on 13.9.2019) by the respondent under Section
41
151 of the CPC for declaring her to be the sole, exclusive and
absolute guardian and custodian of the minor child including the
18.9.2019) and culmination of the proceedings in favour of the
that too without notice to the appellant nor waiting for service of
technical irregularity to be overlooked.
38. Reliance was also placed on the dictum in Shamlal Murari
this Court opined that every minor detail in that rule cannot
carry a compulsory or imperative import. On that finding, the
Court construed the said rule as directory and not having the
and in violation of principles of natural justice.
case, the Court dealt with proceedings under Section 25 of the
42
1890 Act and in the fact situation of that case, noted that the
guardian Court in case of a dispute between the mother and the
father is expected to strike a just and proper balance between the
requirements of welfare of the minor children and the rights of
their respective parents over them. This issue may have to be
debated in the remanded proceedings. We do not wish to dilate
on this aspect.
contending that the impugned judgment and orders came to be
passed by the Family Court in a tearing hurry, may be because of
the insistence of the respondent and her counsel to do so in light
of the observations made by the High Court in habeas corpus and
contempt matters against the appellant. The impugned judgment
does make reference to those orders. We may hasten to add that
the conduct of the appellant frowned upon by the High Court in
the habeas corpus petition or contempt petition, cannot be made
the sole basis to determine the factum of fitness or otherwise of
the appellant for being a guardian of the minor child. That fact
paramount welfare and interest of the minor child. It is for that
reason, even the High Court whilst disposing the habeas corpus
and contempt proceedings, had added a word of caution at the
completely glossed over by the Family Court in the present case.
41. We have chosen not to dilate on other aspects or reported
decisions brought to our notice by both sides including about the
conduct of parties as alleged by each of them against the other.
Nor it is necessary for us to examine the necessity of exploring
psychological barriers likely to be encountered by the minor child
of tender age and more particularly, for her holistic development,
both sides on their own merits and in accordance with law.
44
42. A priori, we have no hesitation in setting aside the ex parte
impugned judgment and orders dated 21.9.2019 passed by the
over custody of the minor child within the time specified therein,
is also set aside. As these orders are set aside, any action taken
on the basis of the aforesaid orders is to be regarded as nonest in
law and is so declared hereunder. That does not mean that the
(appellant) forthwith. That issue will have to be decided finally by
the Family Court in the proceedings remanded in terms of this
order.
45
appellant. In other words, the two applications for amendment of
petition filed by the appellant under Order VI Rule 17 read with
Section 151 of the CPC shall stand restored and revived and be
heard in the first place. Similarly, the other applications filed by
the appellant to bring on record subsequent events/documents
be also decided first. As the appellant has already withdrawn all
indicative of the fact that he intends to pursue the guardianship
petition to its logical end, and for that reason, the transposition
application under Order I Rule 10 read with Order XXIII Rule 1
read with Section 151 of the CPC, filed by the respondent, needs
to be dismissed. We, however, revive the application filed by the
respondent under Section 151 of CPC for declaring her to be the
sole and absolute guardian in place of the appellant. That shall
proceed before the Family Court on its own merits in accordance
with law. All contentions available to both sides including about
its maintainability are left open to be decided by the Family Court
in accordance with law.
46
44. It was brought to our notice that the respondent has taken
U.S. citizenship for the minor child and also U.S. passport in her
name. In the context of that grievance, the respondent through
counsel had assured that she will not precipitate the said claim
and is willing to surrender the same in this Court to avoid any
misapprehension entertained by the appellant. The respondent
may do so within two weeks from today. At the same time, we
direct the respondent not to travel with the minor child outside
taken in the connected matters.
applications in this case are disposed of.
………............................J.
(A.M. Khanwilkar)
………............................J.
(B.R. Gavai)
………............................J.
(Krishna Murari)
47
New Delhi;
March 17, 2021.
48